On the practical application of the new version of the law "On Currency Regulation and Currency Control" The adoption of new currency legislation in Russia great many. However, as is often the case, in the process of applying it in practice revealed some shortcomings. Many of them told the deputy head of documentary operations and foreign exchange controls "Vneshtorgbank" Elena Tretyuhina. Prepared on the basis of a report made to the All-Russian Conference "The monetary policy of Russia" held in late September in Moscow.
New Horizons
Entry into force of the new edition of the Federal Law "On Currency Regulation and Currency Control", as well as access the Bank of Russia regulations liberalized procedures for monitoring and reducing demands on the participants of foreign economic activity (FEA). The main directions of liberalization resulted in the following:
1. Lifted on the basic principle of the old currency legislation: the transactions that are not listed as current, capital, and are conducted with the permission of the CBR.
2. Deleted management tool in the form of authorization of foreign exchange controls (only the opening and maintenance of accounts of legal entities in foreign banks is valid until 19.06.2005). 3. Transactions between residents and nonresidents are no restrictions (except for the operations of 7 and 8, the controlled exchange control authorities - the Central Bank and the Government of the Russian Federation).
4. Limited number of instruments used to regulate the exchange of regulatory operations (reservation, a special account, pre-registration).
5. A rule that if the exchange control authorities have not determined the conduct of monetary operations and the use of accounts (including the requirements on the use of special accounts), foreign exchange operations, account opening and operations on them are carried out without any restrictions.
6. Part 3 of Article 9 expanded the list of currency operations between residents and authorized by the authorized banks in foreign currency (including transactions involving bank guarantees, the use of resident obligations under the treaties of guarantee and mortgage, the bank authorized the payment of commissions, etc.). In addition, due to lack of instruments of the Russian government and Central Bank without the use of the tool of reservation being: Settlements and transfers between residents and nonresidents in foreign trade activities, as well as in the acquisition of a non-resident deposits and shares in the authorized capital of non-resident legal entities. Without reserve or special account, you can also buy and sell foreign currency on behalf of yurlits within the Russian Federation.
Problems identified by the practice
Log in practical application of the new currency legislation revealed some problems. In particular:
1. Part 1 of Article 19 of the Act establishes the duty of the resident in the conduct of foreign trade activity to ensure the repatriation of foreign exchange and currency, the Russian Federation as foreseen in the foreign trade agreements (contracts). This rule applies both to foreign exchange earnings from exports of goods (transfer of work, services, results of intellectual activities), and return to Russia advances paid to non-residents for nevvezenny item (for outstanding service). Such a rule presents problems for the participants of foreign economic activity. In practice, a Russian exporter or importer, with a contract interest in the establishment of objective and compressed time frames for implementation of obligations under the contract. In doing so, the current practice of including in the contract obligations of non-residents to pay fines for violations of its obligations. In order to implement the provisions of Article 19 of the resident interested in the longer duration of repatriation of proceeds, and when approaching the timing data in the event of failure by non-residents of obligations - in the signing of additions to the contract of extension of contract deadlines. So the commercial interests of the participants of foreign economic activity, including getting them to penalties from non-residents, are in contradiction with Article 19 of the Act.
Authorized banks are also faced with the challenge in carrying out the functions of currency control agent for compliance with the provisions of Article 19. Sometimes in foreign trade contracts, the participants of foreign economic activity has no specific timetable for the repatriation of earnings relative to the shipment of exports or to the date of transfer of advance payment for imports, but there is only a time frame for completion of payment / performance of the obligations of the parties under the contract. Then there is the possibility of control over the timing of implementation of obligations under the contract or term of versheniya payments or, in the absence of both, for the term of the contract. There has been no clarification on this matter by the rate regulation no.
2. The practice of applying the rules of Articles 19 and 21 of the Act, as well as learn how the Bank of Russia of 15.06.2004 ? 117-I and the provisions of 01.06.2004 ? 258-P (released in the development of Part 1 of Article 20 (passport transactions)), identified the problem of classification of transactions between residents and non-residents to the concept of foreign trade transactions, or foreign economic activities of the participants of foreign economic activity. Now there is a problem as the authorized banks, and among residents in the skills of a number of transactions to their inclusion in external trade and the need for processing the passport transactions for the transaction, as well as monitoring the repatriation of earnings under him, and mandatory sale, as well as those requirements apply only to foreign trade activity of the client-resident.
In accordance with Part 1 of Article 21, a duty to the resident individuals - individual entrepreneurs and yurlits implement mandatory sale of foreign exchange earnings. In this Part 3 of this Article provides that subject to the mandatory sale of a currency earnings for the transactions involving the transfer of goods, works, provision of services by residents. Therefore, the nature of the transaction as a transaction in the payment for goods, works and services is critical to timely mandatory sale of foreign exchange earnings in the domestic currency market of the Russian Federation.
3. It is also necessary to improve the regulatory framework for foreign exchange controls. Instruction the Bank of Russia from 15.06.2004 ? 117-I and its situation from 01.06.2004 ? 258-P established a complex procedure for residents to take into account foreign exchange transactions across a large number of references, compiled on the paper and assure authorized signatures and seals organizations.
According to the participants of foreign economic activity, these acts must be clearly limited number of cases, presentation of certificates, the list of currency operations for which the certificate is not needed (including the letter of credit transactions), detailed list of code types of currency transactions for the accounting, clearly defined cases, allowing independent of information to authorized banks on the basis of the contract of bank account, not only when a foreign exchange (see section 1.5 of the Regulations the Bank of Russia 15.06.2004 ? 117-I), but with write-currency account with a resident.
4. Federal Law of 29.06.2004 ? 58-FZ, introduced changes to the Federal Law "On Currency Regulation and Currency Control." In particular, he determined that the customs authorities of Russia are now the agents of foreign exchange controls, and the authorized banks to them to perform the functions of the exchange control information to the extent and manner prescribed by the Central Bank. Since June 18, 2004 SCC Russia ceased to be a body of foreign exchange controls, and as a consequence, was suspended the exchange of information between the SCC and the authorized banks, including the halt of the Criminal Code registers the flow of the SCC for the identification of foreign exchange earnings of commodity contracts. Authorized banks themselves were to monitor the repatriation of foreign exchange earnings on the basis they have signed deals passports, payment information and calculations, as well as to represent the client copies of the TBG, transport and other commercial documents.
In doing so, the transfer of information to the customs authorities to carry out the functions of the exchange controls has not been installed. In connection with the entry into force on 1 October 2004 the Federal Law amending the Code of Administrative Offenses, Russia and the Customs Code of the Russian Federation has become a particularly important issue on the fulfillment of authorized banks of the functions of currency control agents listed in Part 7 of Article 23 of the Act. Since June 18 this year and still authorized banks to collect information on violations of norms of client currency legislation, but because of the lack of order in the exchange control authorities that the information has not passed.
Since October 1, 2004, the problem becomes particularly acute if there is formed on the territories of the Federal Service of financial-budgetary supervision, responsible for the Government in accordance with the Order of 15.06.2004 ? 278 "On confirmation of the Federal Service of financial and budgetary oversight."
Settlements between residents of Article 9 of the Law "On Currency Regulation and Currency Control", the calculation of foreign currency between residents in the territory of Russia is prohibited, except as expressly provided in Part 1, Article. However, the resolution is not got a number of currency transactions, which were allowed to carry out between residents in foreign currency under the old wording of the Act. Most issues arise because of the need for foreign currency transactions between residents on the transfer of salaries and travel expenses of members of the resident working in a foreign country (in the absence of representative organizations and the possibility of opening representative schetovv according to the position of the Bank of Russia of 16.10.2002 ? 200 -- P, in connection with foreign states on the territory of the contracting and construction works, etc.).
The issue is complicated by the fact that in some cases, budgetary funds allocated to the Ministry of Finance of the Russian Federation in foreign currency and can not be converted into rubles for the transfer to non-cash form. The same situation arises in the conduct of foreign exchange transactions between residents - contractors and embassies of Russia under contracts for the reconstruction of the embassies on foreign soil.
Operatsiis securities
The current currency legislation raises a number of issues of securities transactions (internal and external) in relation to the restrictions set out in the field. First of all, the question arises about the content of the concept of "transactions with foreign and domestic securities. Included in the discharge of such operations only sale or the transfer of rights upon third parties, payment on account of acceptance, Aval, the transfer of interest and dividends on securities. Article 9, Part 1, paragraphs 5 and 6 restrict transactions between residents in foreign securities. Thus, operations are allowed only to legal entities, and only in the currency of the Russian Federation, subject to such operations in the Depository. It is not permitted by operation of natural persons resident in such securities. Also, under Article 8, of 8, all the cash transactions between residents and nonresidents on transactions with domestic securities are conducted only in the currency of the Russian Federation. Because of these limitations, there is a problem with the possibility of transfer of interest and dividends on foreign securities.
Special accounts and cash
Effects of instructions on the reservation in the conduct of operations of the special accounts of resident and nonresident (Hint CB from 29.06.2004 ? 1465-U) almost led to the cessation of operations, which set the rules of reservation of the special accounts. However, there is a need to conduct transactions on interbank loans in rubles between authorized banks and non-residents, including non-resident banks.
A problem of overdraft credit, contributed to the use of plastic credit cards in rubles issued by non-residents. At the same time, there are a number of ways to avoid redundancy, for example, by contracting a loan for more than 3 years, followed by the signing of a supplementary agreement on the early repayment of such loans. Under the requirements of the Act is a contradiction between paragraph 2, Part 1, Article 9 (authorized transactions related to payments in shops duty-free trade) and Part 3 of Article 14, where in the list of currency operations, allowed for individuals in the form of cash, No operations associated with the calculations in such stores.
I hope that all problems will be solved in the further improvement of the Russian currency legislation, including by amending the Federal Law "On Currency Regulation and Currency Control" or the publication of new regulations the Bank of Russia and Government of the Russian Federation.
Prepared for publication
Yuri Shihov
Yuri Shihov
No comments:
Post a Comment